United States v. Jones

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-50143
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES STEPHEN JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-91-CR-55-1
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
James Stephen Jones, federal prisoner # 56081-080, appeals
the district court’s denial of his motion to reduce sentence
pursuant to 18 U.S.C. § 3582(c)(2) in which he sought to
challenge his sentence following his guilty plea to attempted
manufacture of between 100 and 1000 grams of methamphetamine.
For the first time on appeal, Jones argues that the Government
failed to disclose laboratory reports in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and that he is actually innocent of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 04-50143
-2-
the amount of methamphetamine attributed to him. Jones may not
raise these issues, which are not purely legal, for the first
time on appeal. See Diaz v. Collins, 114 F.3d 69, 71 (5th Cir.
1997).
Jones argues that the district court erred in finding that
the drug-quantity calculation was based on the capacity of the
laboratory. A review of the record establishes that no
inadmissible waste water, byproduct, or precursor chemicals were
considered by the court in its drug-quantity calculation. See
United States v. Allison, 63 F.3d 350, 353 (5th Cir. 1995);
United States v. Manthei, 913 F.2d 1130 (5th Cir. 1990).
Accordingly, the district court did not abuse its discretion by
refusing to apply Amendment 484 to the Sentencing Guidelines to
Jones’s sentence. See United States v. Shaw, 30 F.3d 26, 28 (5th
Cir. 1994).
Jones’s alternative arguments that the theoretical drug
quantity in the presentence report was unreliable and that the
sentencing judge failed to make factual findings are not
cognizable in a 18 U.S.C. § 3582 motion because they are not
based upon a retroactive amendment to the guidelines. See United
States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).
In a FED. R. APP. P. 28(j) letter, Jones argues that his
sentence is invalid in light of Blakely v. Washington, 124 S. Ct.
2531 (2004). This argument is likewise not cognizable in a 18
U.S.C. § 3582 motion as it is not based upon a retroactive
amendment to the guidelines. See Shaw, 30 F.3d at 29.
No. 04-50143
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Jones also argues that the Government’s failure to file a
brief is a “new development” and requires that his allegations on
appeal be accepted as true. The Government’s decision not to
file a brief is not a “new development” of any import.
AFFIRMED.